People ex rel. Butler v. Hawxhurst

123 A.D. 65, 107 N.Y.S. 746, 1907 N.Y. App. Div. LEXIS 3092

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 23, 1907
• Status: Published

Opinion

Gaynor, J.:

In 1877 the commissioners of highways made an order opening a highway now called Maple avenue down “ to.the shore or highwater mark”, i. e., to the, shore of the bay called Oyster Bay, and the highway has ever since been open'and in public use. There is nothing to show that land of the town was taken along the shore above highwater mark without any notice to the town officials in the opening of such highway, as the defendants claim; nor does it appear that the town owned any land there. Above highwater mark at the foot of and upon the said highway several persons have erected bath houses, and this proceeding was to obtain a peremptory writ . of mandamus against the defendants, the highway commissioners, to compel them to remove such obstructions. With the obstructions- there access to the water by the said highway is. substantially cut off. A dock or landing there out into the water would be a very different thing. The final order should have been for the relators, as such a proceeding is maintainable (People ex rel. Pumpyansky v. Keating, 168 N. Y. 390).

The final order should be reversed, and a new' trial ordered.

Woodward, Jenks, Hooker and Bien, JJ., concurred.

Order reversed and new trial ordered, costs to abide the event.